Last week we looked at the defendants disclosure obligations regarding surveillance and investigative material where a claim of privilege has been made, in this weeks post we will look into using surveillance at the examination for discovery, after discovers and before trial.
II) At the Examination for Discovery
In order to obtain the particulars of surveillance before the plaintiff’s discovery, the plaintiff should endeavor to be the first to deliver a notice of examination. By doing so, the plaintiff can take advantage of Rule 31.04(3). This rule states that the party who first serves a notice of examination “may examination first and complete the examination before being examined by another party, unless the court orders otherwise”.
This “first-in-time” rule is significant in light of the Divisional Court’s ruling in Murray v. Woodstock General Hospital Trust (1988), 66 O.R. (2d) 129. In this decision, the Plaintiff sought information as to the dates, times and location of the surveillance and details about the nature of the activities observed and the names and addresses of the investigators. The defendant claimed privilege over all of this information. On appeal, a unanimous panel held that while Rule 30.09 allowed a claim for privilege to be asserted over documents, no such claim could apply to information sought at an examination for discovery under Rule 31.04. Accordingly, the nature of any evidence obtained from surveillance must be disclosed at discovery. This is so “even though to do so would require the disclosure of information contained in a privileged document”. The surveillance documentation itself remained privileged, but the details had to be provided prior to the examination for discovery of the Plaintiff. Therefore, if asked on examination for discovery, defence counsel must disclose the following information:
(a) dates of all actual or attempted surveillance;
(b) the time the surveillance started on each date and the time it ended;
(c) the time the Plaintiff came into view and time he or she went out of view;
(d) the activities observed;
(e) the activities not observed;
(f) the location where the surveillance was conducted;
(g) the name and address of the observer;
(h) existence of any reports, dates of the reports, and contents and conclusions of any reports; and
(i) existence of any film, photograph, video or sound recording, the dates each were taken, and full particulars of the contents.
In addition to asking for particulars about surveillance already conducted, the plaintiff should request a summary of any surveillance or investigation, including on-line investigations that may be carried out in the future. The defendant may take the position that they will provide you with the requested particulars only in circumstances where they intend to rely upon the surveillance or information at trial. Their obligation, however, is to provide you with the particulars regardless of whether they intend to rely upon this material as substantive evidence, for impeachment purposes or not at all.
In the Divisional Court decision of Walker v. Woodstock District Chamber of Commerce (2001), (Ont. S.C.J. Div. Ct.), the issue was whether a party who conducts surveillance of another party is required to disclose full particulars of the surveillance in circumstances where surveillance will only be used to impeach the testimony of the party observed. The court confirmed that defendants are required to make full disclosure of all particulars of the surveillance and investigation conducted by them, even if they intend to maintain a claim of privilege and use the surveillance for impeachment purposes only.
When requesting surveillance particulars, a plaintiff will typically hear defence counsel respond with the phrase “we will comply with the Rules”. In the decision of Smith v. Smith [2000] O.J. No. 4103, Master Polika held that this common defence response is an insufficient answer to a question on examination for discovery. Master Polika affirmed that:
“The defendants must disclose surveillance whether or not they intend to rely on it and whether or not they intend to lead it at trial. In that context, one must differentiate between documentary and informational discovery. In relation to the latter, proper questions are permitted as surveillance relates to matters in issue in the action, that is the plaintiff’s condition and thus meets the test of relevance.”
More recently, Justice Cavarzan in Marchese v. Knowles[2] stated that a defendant’s undertaking to “comply with the Rules” is effectively an undertaking to provide details of the surveillance including dates, times and precise locations; particulars of the activities and observations made; and the names and addresses of the persons who conducted the surveillance.
III) After Discoveries and before trial
Once the defendant has been examined regarding surveillance and investigative material, they have an obligation to make continuing disclosure. Rule 31.09 specifically requires that “where a party that has been examined for discovery subsequently discovers that the answer to a question on the examination was incorrect or incomplete, the party must immediately provide the correct and complete information in writing.”
The plaintiff should obtain an up to date supplementary affidavit of documents from the defendant before trial. Rule 30.07 clearly states that:
“Where a party, after serving an affidavit of documents:
(a) comes into possession or control or obtains power over a document that relates to a matter in issue in the action and that is not privileged; or
(b) discovers that the affidavit is inaccurate or incomplete,
The party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit requires modification and disclosing any additional documents.”
Any surveillance obtained since the examination for discovery of the defendant must be disclosed. If requested, a summary of the surveillance must be provided, notwithstanding that a claim of privilege is being maintained. Similarly, if the defendant has obtained additional material from on-line investigations, these documents should be added to the defendant’s affidavit of documents.
If the defendant fails to disclose these documents in the updated affidavit of documents, the plaintiff has recourse under Rule 30.08, which states
“[w]here a party failed to disclose a document in an affidavit of documents or supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,
(a) If the document if favourable to the party’s case, the party may not use the document at trial, except with leave of the trial judge…”’
The plaintiff should also be aware that the defendant may indirectly (and unknowingly) waive privilege over surveillance and investigative material. A common defence tactic is to send surveillance to doctors hired to conduct defence medical examinations. If the defence has advanced a claim of privilege over the surveillance and not produced the surveillance video or report, by adopting this tactic, the defence has, by implication, waived the claim of privilege over the surveillance tapes and must produce the tapes. See Beausoleil v. Canadian General Insurance Co.[3], Binkle v. Lockhart[4] and more recently, Aherne v. Chang[5]. A waiver of privilege has also been deemed to have occurred when a defendant has disclosed the surveillance evidence to a co-defendant,[6] as well as to a third party[7].
[2] 2011 ONSC 3846 (S.C.J.)
[3] [1993] O.J. No. 2200 (Gen. Div.)
[4] [1994] O.J. 399 (Gen. Div.)
[5] 2011 ONSC 3846 (S.C.J.)
[6] Columbos v. Carroll, (1985) (Ont. H.C.J)
[7] Supercom of California v. Sovereign General Insurance Co., (1998) (Ont. Gen. Div.)